I.e., HB308 and HB627 are dead, but HB533 has moved on to the “sweet 16,” as it were: its first reading (as yet unscheduled) by the opposite chamber. Unfortunately, this outcome is “worse than nothing,” in the words of one civil liberties advocate.

March 12th body camera hearings: outlining the debate
In retrospect, the March 12th House Judiciary Committee hearings on body camera legislation seemed to us an exercise often not just in missing the forest for the trees, but in missing the ecosystem for the forest. Testimony and questions in the hearings focused almost entirely on three questions:

What were the Fourth Amendment implications of body camera footage under different circumstances at the time of videotaping?

In addition, there was discussion of why or why not “constitutionally protected” activities should not be recorded by body cameras (a stipulation of HB627). In each of these (relatively) narrow questions, we largely agree with the premises and/or language of HB627 and its supporters:

the Fourth Amendment issues at stake at the time of a stop or an accosting are entirely a consequence of the authority the officer exercises (i.e., whether the person involved is free to go). The presence of a body camera has no bearing on those consequences.* HB627 advocate and criminal defense attorney Jay Wendell Gordon:

It is not a 4th Amendment issue for the police officer to make observations of what’s in his plain view, that does not trigger the 4th Amendment outside of the initial stop. So in fact your 4th Amendment rights are protected because the behavior of the officer is being recorded, and if there [are] any challenges as to the officer exceeding the scope of his authority, you have a record…

No, the MPIA should not be modified; the law already provides sufficient discretion to data custodians when third parties are requesting data; once those data are given over, rules attempting to govern the use of that information are unconstitutional under the First Amendment. David Rocah (ACLU-MD):

“If we change the MPIA to say that the data is not a public record and never needs to be made public, then we have completely defeated the purpose of doing this in the first place. Completely. That is not to say that every piece of video recorded by every officer is automatically releasable to any and every single person who asks for it. Our current PIA already has a structure for dealing with this kind of data, like all other kinds of …police data.”**

Eavesdropping rules should not be modified for body cameras, until and unless many safeguards are in place governing the operation of these devices and the handling of the streaming and stored data they generate.

Constitutionally protected activities — e.g., demonstrations, religious meetings — should already not be surreptitiously videotaped without warrant, but they should also not be openly videotaped by law enforcement body cameras because of the chilling effect on speech — unless it’s observation of actual criminal activity.

Stepping back from those issues, though, support for body cameras per se was both all but unanimous and unexamined. Moreover, virtually no consideration (beyond our own testimony) was given to how or whether body cam footage might need to be shielded from federal or joint task force access, whether storage time limits were an appropriate way to do that, or whether live body camera footage merited any separate, additional consideration. It also seems to us that Fourth Amendment implications of body cam videotaping don’t begin and end with the authority exercised by the officer; new implications arise as stored or streamed data are examined by other law enforcement authorities for reasons having little or nothing to do with the stop.

Body camera supporter testimonyThe pitches of the first two sponsors — Conaway and Sydnor were short; Sydnor in particular succeeded in making his HB533 seem almost innocuous: “very simple and straightforward and to the point.” By contrast, HB627’s sponsor, Sam Rosenberg (D41, Baltimore City), had a more extensive opening statement — yet also wound up, however unfairly, sometimes seeming unclear on specifics, in part because negotiations about his bill (between ACLU and police chiefs) made the bill so subject to change.

ACLU panelist David Rocah explained that given the demand for body cameras — grounded in police abuses of their discretion — “we need some rules to ensure that the cameras are going to be on when they need to be and that citizens will have the autonomy and dignity to demand they’re off when they should be off. “ Jay Wendell Gordon noted that as a trial defense lawyer, he often (and without apology) seeks to introduce doubt about the veracity of police testimony; body camera footage would make that harder to do.

Ironically, it was ACLU Maryland board member and former police officer Garland Nixon who may have inadvertently suggested the amendment that HB627 foes attached to the stub that was HB533:

As a police officer walking around with a camera — or with anything — I am a lawsuit waiting to happen for both myself and the agency. … What we need to do is put this in place so that the Maryland Police and Correctional Training Commission can put together a singular training program and that all agencies can have a uniform way of implementing this…

Vice chair Kathleen Dumais was to musingly remember that statement later in the hearing. Take out the “put this in place so” and one reads more or less exactly what HB533, as amended, winds up doing: yes, statewide body camera protocols — but with all details left up to the Maryland Police and Correctional Training Commission.

Police testimony in oppositionWhat were some of the reasons police and police advocates gave for opposing HB627?

Usually, the objections were variations on the themes of “micromanagement” or “premature legislation.” Some were plainly either disingenuous or misleading: Karen Krueger, counsel to the Maryland Sheriff’s Association, all but sneered that HB627 threatened to have “citizens control the nature of a police encounter,” with presumably horrible safety implications for police — even though HB627 explicitly limited the possibility of body camera nonconsent to situations where the citizen was already “free to end the encounter.”

The head of the Maryland Chiefs of Police Association, John Fitzgerald (Chevy Chase PD), was a far more effective advocate against HB627, disarming committee members and the audience almost immediately by averring, “We desperately want to get behind a body cam bill” before adding, inevitably, “this one is not it.” He noted, for instance, the difficulty in gaining consent from all parties if the private property in question were a shopping mall or even just a 7-11. Chief Fitzgerald claimed, apparently sincerely, and despite paragraph 4-351(b) of the MPIA**, that his greatest fear was that as embarrassing or worse body camera footage found its way into the media, “People will be chilled from perhaps calling us when they know we’ll come with a camera. We want some protection to give people confidence that we can maintain it within the law and not give it up unnecessarily.”

Fitzgerald also argued that because emotions often run high at demonstrations, leading to disturbances of the peace that police must intervene in, “that’s the time you’ve gotta have [body cameras] on!” Again, though, this ignored that HB627 had expressly carved out an exception to the no-body-camera-at-a-demonstration rule: “unless the law enforcement officer has a reasonable suspicion that a criminal activity is occurring.” [emphasis added]

Epilogue, so farUnfortunately, the main thing Del. Sydnor’s original bill, HB533 — the single body camera bill that did pass out of the Judiciary Committee — does is to trim away , for body cameras, the only potential legal obstacle (road bump or not) in the way of their use: the prohibition on nonconsensual recording of private conversations. The single substantive amendment compounded the problem, basically codifying that the Maryland Police Training Commission and State Police will draft body camera guidelines to suit themselves, without the legislature even suggesting principles to guide that effort.

As one civil liberties advocate agreed, the overall result thus threatens to be “worse than nothing”: all the discretion and the lion’s share of the benefits of body cameras would rest with the police. That judgement is borne out by opposition on the House floor to the bill. Five of the eight Judiciary Committee “Nay” votes (Delegates Morales, McComas, Glass, Rey, and Moon) formed nearly half of the eleven “Nay” votes on the floor. It seems fair to say that, generally speaking, the more a delegate knew about HB533, the less likely he or she was to vote for it.

The most detailed bill, however incomplete — HB627 — got the most detailed scrutiny for its Fourth Amendment implications, even though those were all but identical (at least at the point of officer-citizen contact) to those of body camera interactions absent any legislation at all. Meanwhile, the premise of the simplest, shortest bill (HB533) was not really carefully examined for its effect in the absence of the kinds of regulations HB627 proposed. And ironically, given the criticism (however misguided) that HB627 got for not adequately controlling release of footage under MPIA, that issue wasn’t addressed by HB533 either — even as amended.

The body camera saga thus constitutes yet another win, at least so far, for the police “community” at the state level in 2015. It will be important, in our judgment, to urge defeat of the HB533 and its (unamended) Senate twin SB628 in the Judicial Proceedings committee.

* As long as the body camera system is not comparing images to any embedded or linked database.
** MPIA Paragraph 4-351(b): A custodian may deny inspection by a person in interest only to the extent that the inspection would:

(1) interfere with a valid and proper law enforcement proceeding;(2) deprive another person of a right to a fair trial or an impartial adjudication;(3) constitute an unwarranted invasion of personal privacy;(4) disclose the identity of a confidential source;(5) disclose an investigative technique or procedure;(6) prejudice an investigation; or(7) endanger the life or physical safety of an individual.